In an effort to defend the constitutionality and functionality of all Violence Against Women Act (VAWA) tribal provisions, the National Indigenous Women’s Resource Center launched the VAWA Sovereignty Initiative. Following the historic victory in restoring the inherent authority of Indian tribes to prosecute non-Native defendants for certain crimes (partial Oliphant fix) – known as Special Domestic Violence Criminal Jurisdiction with the 2013 reauthorization of the Violence Against Women Act, NIWRC shifted focus to enhance the tribal provisions further and defend the important advancements in federal law and policy related to the protection of Native women and children.
Because many tribes do not have adequate resources to assess all of their legal vulnerabilities in implementing VAWA, this national initiative was necessary to protect VAWA and tribal jurisdiction over non-Indians nationwide. In collaboration with the attorneys at Pipestem Law, the VAWA Sovereignty Initiative allows NIWRC to prepare for the defense of VAWA and tribal sovereignty through the monitoring of federal court cases to ensure that as soon as the first challenge hits the courts, Indian country is ready to respond. Scroll down to explore case overviews and briefs filed through the VAWA Sovereignty Initiative.
Hear Mary Kathryn Nagle and Wilson Pipestem of Pipestem Law and NIWRC Board Member Deborah Parker
discuss the VAWA Sovereignty Initiative at the National Congress of American Indians 2016 Winter Session.
Moving the Work Forward
NIWRC needs the support and investment of Indian tribes and generous supporters to see the VAWA Sovereignty Initiative through. Help champion for the rights and safety of Native women, children, families and communities by making an investment in this critical work to protect tribal sovereignty and Native women.
Two Ways to Support the VAWA Sovereignty Initiative:
1. Donate Online: make a tax-deductible contribution via PayPal
2. Mail Your Donation: make a tax-deductible contribution via check
Payable to “NIWRC VAWA Sovereignty Initiative”
Mail check to: NIWRC, PO Box 99, Lame Deer, MT 59043
McGIRT V. OKLAHOMA
In a critical move to protect tribal sovereignty and Native victims of violence, the National Indigenous Women’s Resource Center, the American Civil Liberties Union (ACLU), and the ACLU of Oklahoma Foundation, along with 27 tribal and advocacy organizations, united in filing an amicus brief in McGirt v. Oklahoma, a Supreme Court case that could disestablish the Muscogee (Creek) Nation tribal reservation, effectively precluding the tribe from fully implementing restored tribal criminal jurisdiction under the Violence Against Women Act.
NIWRC was joined by five Tribal Nations — the Tulalip Tribes, the Sault Ste. Marie Tribe of Chippewa Indians, the Nottawaseppi Huron Band of Potawatomi, the Pokagon Band of Potawatomi, and the Confederated Tribes of the Umatilla Indian Reservation — each of whom are investing significant resources, time, and effort to ensure prosecutions of domestic violence crimes serve to increase the safety of their tribal communities, while simultaneously working to ensure that the rights of the defendants in tribal criminal proceedings are respected and enforced.
In 2017, the Tenth Circuit Court of Appeals relied on the well-settled principle that “only Congress may disestablish or diminish an Indian reservation,” and in considering “whether Congress has done so as to the Creek Reservation,” the Tenth Circuit concluded “it has not.” The State of Oklahoma immediately filed cert with the U.S. Supreme Court, asking the Court to declare the Creek Nation Reservation disestablished, despite the fact that Congress has never done so. The Supreme Court granted cert, but after a full round of briefing and oral argument in November 2019, the Court has yet to issue a decision in the earlier case, Murphy v. Royal.
More recently, on December 13, 2019, the Supreme Court granted Jimcy McGirt’s petition for a writ of certiorari in McGirt v. Oklahoma. The question of the continued existence of the Creek Nation’s Reservation is once again before the U.S. Supreme Court, and Oklahoma is once again arguing that the Supreme Court should overlook decades of solidified precedent to judicially declare a reservation disestablished — despite the fact Congress has kept the reservation intact.
While the two cases differed in their facts, if the court were to judicially disestablish the Creek Nation’s Reservation, the majority of the lands within the Creek Nation’s historical boundaries would no longer constitute “Indian country” under 18 U.S.C § 1151(a). Such a disestablishment of an existing reservation would eliminate the very same tribal jurisdiction that Congress recently, and purposefully, restored through the reauthorization of the Violence Against Women Act in 2013 (VAWA).
In reauthorizing VAWA, Congress tethered its restoration of tribal criminal jurisdiction to lands that constitute “Indian country” as defined by 18 U.S.C. § 1151. Thus, because the lands within a Tribal Nation’s borders—its “reservation”—constitute “Indian country” under § 1151, a judicial decision disestablishing a Tribal Nation’s reservation would effectively preclude that Nation from fully implementing VAWA’s restored tribal jurisdiction. For instance, if the Court were to declare the Creek Nation’s Reservation “disestablished,” the Creek Nation’s ability to prosecute a non-Indian who committed an act of domestic violence or dating violence within its territorial jurisdiction would be severely truncated. The NIWRC Amici, filed in February 2020, therefore, offers a unique perspective on the relationship between Congress’s plenary power over Indian affairs, the inherent sovereign authority of tribal governments to prosecute crimes committed by or against tribal citizens, and safety for Native women and children.
GAMBLE V. UNITED STATES
In November 2018, NIWRC and the National Congress of American Indians filed an amicus brief in Gamble v. United States. Gamble, who had been convicted by both the State of Alabama and the United States of violating similar firearm laws, challenged his federal conviction in the Supreme Court, asserting that his subsequent federal conviction — because it followed a state conviction — violated his rights under the U.S. Constitution’s Double Jeopardy Clause. The Supreme Court’s precedent on point, however, commands that the “separate sovereign” doctrine applies to duplicate state and federal prosecutions—or duplicate tribal and state/federal prosecutions—such that these duplicative violations for the same crime do not violate the Double Jeopardy Clause. Many were surprised the Supreme Court agreed to hear this case since the “separate sovereign” doctrine has controlled for more than 150 years and the Court had repeatedly declined invitations to overturn it. To be sure, the loss of the “separate sovereign” doctrine could have had significant implications for Native women and children, if the Court had overturned the doctrine entirely. The amicus brief filed by NIWRC and NCAI asserted that overturning the Court’s long-standing precedent regarding the separate sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country.
The ability of both sovereigns to prosecute has heightened importance for Tribal Nations due to sentencing limitations placed on tribal courts by the federal Indian Civil Rights Act and the well-documented challenges the federal government has investigating and prosecuting inherently local crimes. Changing this rule would have destabilized an already precarious jurisdictional scheme at the expense of victims, particularly those who experience serious domestic violence or sexual violence. That is, the eradication of the “separate sovereigns” doctrine would require a Tribal Nation to choose whether to prosecute a case before the U.S. Attorney has had sufficient time to perform the necessary investigation to determine whether they will prosecute under federal law and sentencing authority. The Tribal Nation could have been forced to move forward with prosecution, and without the “separate sovereigns” exception, such a prosecution would then preclude the more meaningful and deterrent sentencing authorized under federal jurisdiction. And thus, until or unless tribal criminal jurisdiction—and sentencing authority—is fully and completely restored, federal prosecutions will remain an essential tool in preserving the safety of Native women and children in their own homes.
During oral argument, Justice Breyer referred directly to the amicus brief by NIWRC and NCAI, stating “...think of the brief here with the Indian tribes. We’re saying that we need this kind of thing for abuse of women.” In a 7-2 opinion, the Court declined to overturn the dual-sovereignty doctrine.
ROYAL V. MURPHY
In September 2018, NIWRC had an interest in filing and began organizing to file an amicus brief in Royal v. Murphy, a case that will be argued before the U.S. Supreme Court in the 2018 Term. In August 1999, Patrick D. Murphy and his two friends, Billy Long and Kevin King, murdered and mutilated George Jacobs. In 2000, a jury in McIntosh County convicted Murphy of first-degree murder and imposed the death penalty. After two appeals, both denied by the OCCA and a federal district court, Murphy’s third appeal was accepted by the 10th Circuit Court of Appeals. In 2020, the Tenth Circuit determined that the Creek Nation’s reservation had never been disestablished, and ultimately, found that the State of Oklahoma was without jurisdiction to criminally prosecute Murphy because his crime was against an Indian victim on tribal trust land within the border of the Creek Nation’s reservation. The Court has yet to issue a decision in Murphy v. Royal.
To reach this conclusion, the Tenth Circuit considered whether Congress showed explicit intent or language to disestablish the Muscogee Creeks’ 1886 tribal boundaries through the Creek Allotment Act of 1901 or any later acts related to the Tribe. The Court applied disestablishment criteria under Solem v. Bartlett (1984) and ruled that Congress hasn’t shown explicit intent or language to disestablish the Creek reservation through any Congressional act. The Court’s decision states that “Oklahoma lacked jurisdiction” to prosecute Murphy for a crime that happened in Indian Country – thus overturning his prior conviction and sentence on August 7, 2017. In May 2020, the U.S. Supreme Court said it will review the Murphy case and both parties will argue, once again, if the Creek reservation has been diminished or disestablished in any way.
Although the Supreme Court’s analysis will most likely focus on the three-part test set out in Solem to determine whether the Creek Nation’s reservation has been disestablished, the Court’s determination of what gives rise to the disestablishment of a “reservation” under 18 U.S.C. § 1151(a) will have significant implications for Tribal Nations seeking to utilize VAWA § 904’s restored tribal criminal jurisdiction to protect their citizens from non-Indian offenders. That is, the Court’s decision in Murphy could result in a decision that expands or severely limits the restored criminal jurisdiction of the area of land over which Tribal Nations may now exercise criminal jurisdiction under VAWA 904. The Supreme Court needs to hear the perspective of organizations and survivors working to end domestic violence and sexual assault against Native women, as the Court’s decision will likely have serious consequences for Tribal Nations seeking to protect their women and children from domestic violence and dating violence on tribal lands.
STANDING ROCK SIOUX TRIBE V. UNITED STATES ARMY CORPS OF ENGINEERS
In February 2017, NIWRC filed an amicus brief in the litigation in support of the Standing Rock Sioux Tribe’s motion for summary judgment challenging the Corps’ decision to proceed with permitting the pipeline without preparing a full environmental impact statement. NIWRC’s amicus brief was joined by 118 additional organizations and Tribal Nations that share NIWRC’s commitment to ending violence against Native women.
There is a recognized and documented correlation between an increase in extractive industries and an increase in violence against Native women. Data gathered in the Bakken oil boom in North Dakota and Montana, as well as data from various extractive industries in other indigenous territories (such as Canada), show that an increase in extractive industries coincides with an increase in crimes against Native women and children such as rape, assault, domestic violence, murder, and sex trafficking. The current oil extraction activities in North Dakota — at present levels — has already created a crisis. Native women and children — and the Nations that seek to protect them — suffer the most.
As sovereign Nations, the Tribes in North Dakota have an inherent right to protect their women and children from anyone or anything that threatens to bring crime onto tribal lands. But when Native Nations are excluded from the federal consultation process, they lose any and all meaningful opportunity to consult on the harmful effects a pipeline will have on their land, water, and ultimately — the lives of their citizens. Congress created the § 106 consultation process to honor and respect the sovereign government-to-government relationship between the United States and Native Nations. As Trustee to Native Nations, the Federal Government has a duty and an obligation to fully engage Native Nations in the § 106 consultation process and consider all concerns Native Nations voice — including, and not limited to, the increased violence and assaults their women and children will face if the Federal Government issues the permits necessary to allow this pipeline to cross the Missouri River.
Prior to filing its amicus brief, NIWRC formally submitted comments to the Corps in January 2017, eight days after the Corps initiated the EIS comment period and thirteen days before the Corps terminated the EIS process on February 8, 2017. In its submitted comments, NIWRC provided the Army Corps with its views on: the unconsidered risks that would result from the Army Corps granting the easement without adequately considering the public interest implications of the proposed pipeline. Specifically, the Army Corps must consider the increased levels of violence Native women and children in the Bakken region will face if the pipeline is permitted to cross the Missouri River at Lake Oahe and commence operations.
Press release: NIWRC's Open Letter/Statement on Standing Rock
UNITED STATES V. BRYANT
On February 1, 2016, NIWRC filed an amicus brief to support the United States’ position in U.S. v. Bryant. The brief argues that Congress did not intend to make the application of the habitual offender provision dependent on whether the defendant in the underlying tribal court domestic violence conviction received assistance of counsel. It further advocates that federal courts have no authority to dictate to tribal governments how they will treat their own members in their respective tribal courts.
In U.S. v. Bryant, the Court has granted review of a decision by the U.S. Court of Appeals for the Ninth Circuit which held that tribal court criminal convictions for domestic violence may be used in federal court prosecutions as a habitual offender under 18 USC §117 (the “Habitual Offender Provision”) only if the tribal court guarantees a right to counsel. The Ninth Circuit (in conflict with the Eighth and Tenth Circuits) concluded that it is constitutionally impermissible to use uncounseled convictions to establish an element of the offense in a subsequent prosecution under § 117(a). The case raises important issues of protecting the safety of Native women survivors of domestic violence in Indian country, as well as questions on the right to counsel for indigent persons in tribal courts.
NIWRC filed an amicus brief to support the United States’ position, specifically, to make clear that Congress did not intend to make the application of the Habitual Offender Provision dependent on whether the defendant in the underlying tribal court DV conviction received assistance of counsel. Thus, NIWRC advocated that federal courts have no authority to dictate to Tribal Governments how they will treat their own members in their own Tribal Courts. Tribal Governments, like all other sovereign governments, know best how to balance the rights of their women to be free from domestic violence with the rights of the accused perpetrators to be treated fairly and afforded due process. Nothing in the United States Constitution provides the U.S. federal courts with the authority to determine how Tribal Governments will adjudicate disputes that fall exclusively between tribal citizens. NIWRC’s brief will also cover the extensive and important legislative history behind the enactment of the Habitual Offender Provision. Domestic violence is a pattern of violence that typically escalates over time in severity and frequency. To prevent future violence and end the pattern, perpetrators must be held accountable immediately. Many states have passed statutes enhancing the penalty for repeat domestic violence offenders. Native women under federal jurisdiction however did not have this protection so the movement organized nationally to pass the Habitual Offender Provision as part of the Safety for Indian Women Title of VAWA in 2005.
Bryant exemplified the problems inherent in a legal framework that limits both the tribal government and federal government to imposing nothing more than a slap on the wrist. Despite hundreds of convictions and hundreds of contacts with tribal police, Bryant continued to abuse numerous Native women. For several years, he hit, strangled, kneed, kicked, and bit Native women. In 1999, he strangled his girlfriend at the time and smashed a beer bottle on her head. In 2007, he punched and kneed a girlfriend in the face. In February 2011, he grabbed his then-girlfriend, pulled her hair, repeatedly punched her in the face and chest, repeatedly kicked her, bit her fingers, and threatened her. In May of that same year, Bryant violently assaulted another woman who was living with him at the time. One morning, when he awoke and could not find his truck keys, he grabbed his victim with both hands and strangled her until she almost passed out. Bryant has been convicted of committing crimes of domestic violence in January 1998, July 1998, March 2002, September 2002, July 2003, and February 2005, in addition to his most recent 2011 conviction in the United States District Court, District of Montana.
Documents and Briefs: NARF: US v. Bryant (15-420)
VOISINE V. UNITED STATES
On January 25, 2016, NIWRC participated and filed a brief as amicus curiae in support of the United States Department of Justice, asking the United States Supreme Court to affirm the First Circuit Court of Appeals’ decision in Voisine v. United States. Collectively, NIWRC and their fellow amici urge the Supreme Court to uphold the application of federal firearms prohibition to individuals who have been convicted of domestic violence crimes against Native women. The amicus brief noted that, like the majority of States, many Tribal Governments define domestic violence as a crime that may be committed with reckless intent.
Five Indian Nations joined NIWRC’s amicus brief, including the Confederated Tribes of the Umatilla Indian Reservation, the Eastern Band of Cherokee Indians, the Little Traverse Bay Band of Odawa Indians, the Nottawaseppi Huron Band of the Potawatomi, the Seminole Nation, and the Tulalip Tribes. All five amici Indian Nations have invested substantial resources in order to fully exercise their inherent sovereignty and eradicate domestic violence on tribal lands; indeed, all five amici Indian Nations have implemented the special domestic violence criminal jurisdiction restored in § 904 of the 2013 re-authorization of the Violence Against Women Act (VAWA), a provision that recognizes and restores the inherent sovereignty of Tribal Nations to prosecute non-Indians who commit crimes of domestic violence against tribal citizens on tribal lands. Eighteen tribal coalitions dedicated to supporting survivors and ending domestic violence in tribal communities across the United States also joined the NIWRC amicus brief.
In June 2016, the U.S. Supreme Court today affirmed that the federal firearm prohibition, 18 U.S.C. § 922(g)(9), prohibits an individual convicted of a misdemeanor crime of domestic violence from possessing a firearm, regardless of whether the underlying crime of domestic violence was committed with knowing, intentional, or reckless intent. Petitioners Stephen Voisine and William Armstrong asked the Supreme Court to declare that Congress did not intend for § 922(g)(9)’s firearm prohibition to apply to individuals convicted of reckless domestic violence crimes. The Supreme Court declined to carve reckless convictions out of § 922(g)(9)’s reach. Instead, Justice Kagan, writing for the majority, stated that “Congress’s definition of a ‘misdemeanor crime of violence’ contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly ‘uses’ force, no less than one who carries out that same action knowingly or intentionally.”
DOLLAR GENERAL V. MISSISSIPPI BAND OF CHOCTAW INDIANS
As the first step in undertaking the VAWA Sovereignty Initiative, NIWRC filed an amicus brief in Dollar General Corporation, et. al. v. Mississippi Band of Choctaw Indians in the United States Supreme Court on October 22, 2015. The amicus brief filed by NIWRC called on the United States Supreme Court to uphold the authority of tribes to exercise civil jurisdiction over non-Indians who sexually assault and abuse Native women and children on tribal lands. NIWRC was joined on the brief by 105 national, regional, and tribal organizations dedicated to increasing the safety of Indian women and children.
On December 7, 2015, the Supreme Court heard arguments in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a case concerning whether the Mississippi Band of Choctaw Indians’ tribal court may exercise its inherent civil jurisdiction over tort claims filed in tribal court against a non-Indian corporation, Dollar General, whose employee supervisor allegedly sexually assaulted a young Choctaw intern working in the store that Dollar General leases from the tribe on tribal lands. In asking the Supreme Court to overturn the Fifth Circuit Court of Appeals’ decision affirming tribal jurisdiction, Dollar General has asked for nothing less than the wholesale elimination of all tribes’ civil jurisdiction over non-Indian conduct on tribal lands.
On the morning of the oral arguments in December, hundreds of concerned organizations and individuals joined the Quilt Walk for Justice on the sidewalk in front of the Supreme Court to stand in solidarity with the Mississippi Band of Choctaw Indians, and all tribes who seek to exercise their inherent sovereignty authority to protect their women and children on tribal lands. NIWRC had partnered with the Monument Quilt Project, FORCE Standing Against Rape, the National Congress of American Indians, and Indian Law Resource Center to organize the National Quilt Walk for Justice. The Nottawaseppi Huron Band of the Potawatomie and Tulalip Indian Tribes joined as partners for the Walk.
In a narrow victory for the nation’s federally-recognized tribal nations, the United States Supreme Court held the 5th Circuit opinion in a 4-4 deadlock in Dollar General v. Mississippi Band of Choctaw Indians. With this victory, the retail giant is now subject to the tribal court’s jurisdiction in a long-running case that had grave consequences for tribal civil jurisdiction for contracts and tort violations by non-Indians on Indian lands.
The Dollar General store where the alleged sexual assault occurred is located on tribal trust land leased to Dollar General. The current case concerns the claims brought by two parents whose child, a citizen of the tribe, was allegedly sexually assaulted by Dollar General’s store supervisor when he was working at the store. Dollar General had agreed to participate in a youth job-training program operated by the Mississippi Band of Choctaw Indians that the youth was involved in. Following the assault, he and his parents brought an action against Dollar General in tribal court, seeking monetary compensation for pain and suffering to cover the youth’s medical and trauma recovery expenses.
Dollar General argued that the Mississippi Band of Choctaw tribal court could not exercise jurisdiction over Dollar General because the defendant is a non-Indian. After losing this argument in the Mississippi Choctaw Supreme Court, Dollar General circumvented the tribal court by filing a collateral challenge to the tribe’s jurisdiction in the United States District Court, Southern District of Mississippi. After both the District Court and the Fifth Circuit Court of Appeals agreed with the tribe and concluded that the tribal court could exercise jurisdiction over Dollar General, Dollar General filed an appeal with the United States Supreme Court.